18 International trade policy and domestic food safety
regulation: The case for substantial deference
by the WTO Dispute Settlement Body under
the SPS Agreement*MICHAEL TREBILCOCK AND JULIE SOLOWAY

I
The nature of the problem

There has been a dramatic shift in the focus of trade policy concerns
in recent years from the barriers that lie at the border to the barriers which exist “within the border. ” 1 The General Agreement on Tariffs and Trade/World
Trade Organization (GATT/WTO) and other regional trading arrangements have
been largely successful in reducing both the levels of tariffs worldwide and
the scale of other border measures such as quotas. This has revealed a new
and more subtle category of measures which restrict trade–the numerous
regulations which governments enact to protect the health and safety of their
citizens and the environment in which they live. Such regulations vary tremendously across borders: one nation's bunch of grapes is another nation's repository of carcinogenic pesticide residue. These efforts to protect citizens from
the hazards of everyday life have become a virtual minefield for trade policy
makers, in part because such differences can often be manipulated or exploited
to protect domestic industry from international competition,2 andinpartbecause even when there is no protectionist intent on the part of lawmakers,
through a lack of coordination, mere differences in regulatory or standard-setting
regimes can function to impede trade through increasing multiple compliance
costs. It has thus become increasingly difficult to delineate the boundaries between
a nation's sovereign right to regulate and its obligation to the international trading community not to restrict trade. The question of how to address this problem
has received increasing attention from trade policy scholars. As Miles Kahler states,
“[t]he decades-long process of lowering trade barriers resembles the draining of a

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